EXTRINSIC EVIDENCE NOT ALLOWED TO VARY WRITTEN CONTRACT

FAILURE TO TENDER STOLEN ITEMS DOES NOT MAKE PROSECUTION’S CASE WEAK

The position of the law is that where there is overwhelming evidence from Witnesses, which is not contradicted, and which is believed, that property or money were stolen during an armed robbery operation, the non-tendering of these items in Court, as Exhibits, will not destroy the Prosecution’s case – see Ajumobi v. State (2018) LPELR-(43854) SC, wherein Akaahs, JSC, observed that – The production of the stolen items, no doubt, will make watertight the case of the Prosecution. The law, however, still remains that where the evidence adduced by the Prosecution is capable of being believed and the trial Judge believed it and convicts the Accused, an appellate Court will be slow to overturn the verdict simply on the basis that the trial Court could have viewed such evidence otherwise. Where it is suggested that a piece of evidence casts some doubt on the Prosecution’s case, it is necessary to show, unless such is manifest or evident from the Records, what aspects becomes doubtful by reason of the evidence.

— A.A. Augie, JSC. Usman v The State (2019) – SC.228/2016

PRINCIPLES TO GUIDE WHETHER NEW EVIDENCE SHOULD BE ALLOWED

In Comfort Asaboro v. M.G.D. Aruwaji and Anor. (1974) 4 SC 87 at 90-91 (Reprint) this court had cause to consider the principles which are to be taken into consideration in an application to call additional evidence on appeal. The court per Coker JSC said:- “The decision also evidently applied the principles which time honoured practice has established and the matters which the courts have always taken into consideration in the judicious exercise of powers to grant leave to adduce new evidence, namely:- The evidence sought to be adduced must be such as could not have been with reasonable diligence obtained for use at the trial; The evidence should be such as if admitted, it would have an important, not necessarily crucial, effect on the whole case; and the evidence must be such as apparently creditable in the sense that it is capable of being believed and it need not be incontrovertible. See for these observations Roe v. R McGregor and Sons Ltd. (1968) 1 WLR 925 where the earlier decision of the Court of Appeal in Ladd v. Marshall (1954) 3 All ER 745 was considered and applied. Strictly speaking, under our own rule, the discretion to grant leave to adduce new evidence is properly exercised for the “furtherance of justice”. The exercise must however be judicious and it is in this respect that the guidelines set out above have been followed and applied. We are not unmindful of the fact that it would be a dangerous precedent to allow a person who did not call evidence in the lower court, or who, for one reason or another, had called insufficient evidence at the trial, with comparative ease, to bring forward for the first time before this court the evidence which could and should have been adduced before the trial Judge. Such an attitude would be disastrous to the principles of seeing an end to litigation. The stand taken by the Privy Council in the case of Edie Maud Leeder v. Nnance Ellis (1953) at 52 (sic) also illustrates this point. However one looks at the problem, it seems to be generally accepted that the guiding principles have always been applied to the special facts or circumstances of each application before the Court of Appeal, and in every case the question whether or not sufficient diligence has been put into the quest for such evidence has been decided as a matter of fact.”